Thompson v. St. John

• Decision Date: 06 February 1996
• Docket Number: No. 20072,20072
• Citation: 915 S.W.2d 350
• Parties: Gene C. THOMPSON, Appellant, v. Herb ST. JOHN and Mary St. John, Respondents.
• Court: Missouri Court of Appeals

Page 350

915 S.W.2d 350

Gene C. THOMPSON, Appellant, v. Herb ST. JOHN and Mary St. John, Respondents.

No. 20072.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 6, 1996.

Appeal from the Circuit Court of McDonald County; Timothy W. Perigo, Judge.

John Sims, Sims, Johnson, Wood & Higdon, Neosho, for appellant.

Philip J. Metz, Joplin, for respondents.

CROW, Judge.

This effort by Defendants, Herb St. John and Mary St. John, to obtain an order from the trial court setting aside a judgment against them in favor of Plaintiff, Gene C. Thompson, evolved into a procedural nightmare. Our effort to resolve the bewildering issues confronting us will be undertaken only after we grope our way, step-by-step, through the sinuous maze presented by the bizarre record.

January 3, 1992. Plaintiff sues Defendants on a promissory note dated January 5, 1977, in the principal amount of $47,000. Petition prays for judgment in the amount of $28,160.78 plus interest of $6.16 per day from December 20, 1991, together with a reasonable attorney's fee. Summonses are issued and delivered to sheriff.

January 29, 1992. Docket entry: "2 returns filed."

June 7, 1994 (28 months later). Plaintiff, accompanied by lawyer John Sims, appears in trial court and testifies in support of petition, avowing the sum due is $33,632.58. Docket entry: "... Resp [sic] appear not.... Default judgment ordered entered...." Trial court announces:

"A judgment is ordered in the amount as stated in the testimony, together with an attorney fee of 15 percent of the amount due. I'll execute a formal judgment with the specific figures in it."

June 27, 1994. Document designated "Judgment," signed by trial court, is stamped "Filed" by circuit clerk. It awards Plaintiff judgment against Defendants "jointly and severely" [sic] in the amount of $33,632.15 (43 cents less than the amount testified to by Plaintiff), with interest at eight percent per annum and an attorney fee of $1,681.63. According to a docket entry, a copy of the judgment is sent to lawyer Sims and to Defendant Herb St. John.

July 7, 1994. Circuit clerk receives two motions from lawyer Philip Metz on behalf of Defendants. We henceforth refer to the motions as "Motion I" and "Motion II," respectively.

Motion I is designated "Motion to Set Aside Default Judgment." It cites "Rule 75.05(d)" ¹ and avers, in substance, that Defendants have a meritorious defense to Plaintiff's claim and that Defendants' failure to appear in trial court "was not intentionally or recklessly designed to impede the judicial process." Motion prays for an order "setting aside the default judgment entered by this court on June 7, 1994" [sic] and allowing Defendants to file an answer.

Motion II, like Motion I, is designated "Motion to Set Aside Default Judgment." It avers Plaintiff's petition prayed for judgment in the principal amount of $28,160.78, but trial court entered judgment for $33,632.15. Motion II also points out that petition prayed for a reasonable attorney's fee and trial court "awarded $1,681.43 [sic] in attorney fees" without a showing of the number of hours lawyer Sims worked on the case or his hourly rate. Citing Pierce v. Pierce, 737 S.W.2d 508 (Mo.App.E.D.1987), Motion II asserts a default judgment can be set aside as irregular if the relief is greater or different than that requested in the petition. Arguing that the relief granted in the judgment against Defendants is greater and different from the relief requested in Plaintiff's petition, Motion II prays trial court to set judgment aside as irregular and allow Defendants to file an answer.

The docket entry of July 7, 1994 (the date the circuit clerk received Motion I and Motion II), states: "Motion to set aside default judgement filed."

A careful reader will note the above entry indicates one motion, not two, was filed. Evidently, that is because the circuit clerk, upon receiving Motion I and Motion II, stamped both "Filed," but returned one to lawyer Metz. During oral argument in this Court, lawyers Sims and Metz stipulated that Motion I was the one inserted in the trial court file and Motion II was the one sent back to Metz. ²

July 14, 1994. Docket entry: "Motion set 8/2/94 at 9:00 A.M."

August 2, 1994. Docket entry: "Motion to set aside default judgment overruled." This entry and the preceding one corroborate our earlier conclusion that only Motion I was placed in the trial court file.

August 4, 1994. Defendants, by lawyer Metz, file "Motion to Reconsider." It avers Defendants "were not given notice that their motions were set for hearing on August 2, 1994." ³ Citing Rule 44.01(d), ⁴ the Motion to Reconsider asserts Defendants were entitled to at least five days notice in advance of the August 2 hearing. Motion to Reconsider prays:

"... that the Court's overruling the Motion to Set Aside Default Judgment be set aside and that the motions be reset for hearing, and that notice be given to the defense...."

November 1, 1994. Trial court conducts hearing on Motion to Reconsider. Lawyers Sims and Metz appear. Trial court concedes Defendants "probably are entitled to have the hearing that you did not have here on August the 2nd."

Lawyer Sims argues that because more than thirty days have elapsed since Motion I was denied, the denial is final and "we can't go back." According to Sims, trial court has "probably lost jurisdiction to do anything further."

Trial court makes no ruling, but grants parties time to file suggestions. According to the docket sheet, the parties did so. ⁵

November 18, 1994. Defendants file three more motions.

One is designated "Third Motion to Set Aside Default Judgment." We henceforth refer to it as "Motion III."

Another is designated "Motion for Relief from Order Overruling Motion to Set Aside Default Judgment Pursuant to Supreme Court Rule 74.06." We henceforth refer to it as "Motion for Relief I." The reason for the Roman numeral is obvious in the next paragraph.

The third motion is designated "Motion for Relief of Default Judgment Pursuant to Supreme Court Rule 74.06." We henceforth refer to it as "Motion for Relief II."

Motion III avers Defendants have a meritorious defense to Plaintiff's petition and endeavors to plead facts demonstrating the existence of such defense.

Motion for Relief I asserts trial court's order of August 2, 1994, is an order from which relief may be obtained under Rule 74.06(b). ⁶ Motion for Relief I maintains Defendants are entitled to relief from the August 2 order because it is "irregular" in that Defendants were given no notice of the hearing at which the order was entered, contrary to the five-day notice requirement of Rule 44.01(d). Motion for Relief I prays trial court to vacate order of August 2, 1994, and set the "Motion to Set Aside Default Judgment" ⁷ for hearing.

Motion for Relief II seeks relief from the judgment of June 27, 1994--not from the order of August 2, 1994. Motion for Relief II endeavors to invoke three provisions of Rule 74.06(b) ⁸: clause "(2)," authorizing relief from a judgment on the ground of fraud or misconduct of an adverse party; clause "(4)," authorizing relief from a void judgment; clause "(5)," authorizing relief from a judgment if it is no longer equitable that the judgment remain in force. Motion for Relief II prays trial court to set aside the June 27, 1994, judgment and dismiss Plaintiff's petition or, alternatively, to allow Defendants to "litigate the issues."

December 6, 1994. Trial court conducts hearing. Lawyers Sims and Metz appear. Metz calls trial court's attention to circuit clerk's failure to place Motion II in trial court file on July 7, 1994. Metz tenders Motion II.

Trial court remarks: "Probably the way to clean this file up is to sustain [Metz's] motion.... But let me read the motions first."

Metz asks trial court whether it wants "to hear some testimony under oath to support the motions."

Trial court replies, "I would like for you to submit an affidavit."

December 8, 1994. Defendants file four affidavits. Each affidavit is signed by both Defendants. One affidavit purports to support Motion I and Motion II, but its averments are pertinent to only Motion I. The other three affidavits support, respectively, Motion III, Motion for Relief I, and Motion for Relief II.

January 11, 1995. Trial court files "Order Setting Aside Default Judgment." It reads:

"... After reviewing the pleadings, the court enters an Order Setting Aside the Default Judgment previously entered by this court on July 7, 1994 [sic]. The Order of this court dated July 7, 1994, [sic] is hereby vacated."

An attentive reader will recall the trial court entered no judgment or order on July 7, 1994.

Plaintiff brings this appeal from the order of January 11, 1995. Plaintiff treats the order as one setting aside the judgment signed by the trial court and filed June 27, 1994.

Defendants treat the order of January 11, 1995, the same as Plaintiff. Consequently, so shall we. However, we do not imply we would have done so had its effect been in dispute.

The first of Plaintiff's four points relied on reads:

"The trial court erred in entering its order of January 11, 1995, which order set aside the default judgment entered against [Defendants] on June 27, 1994, inasmuch as the court had no authority to enter such an order. The court lost its authority to set aside the judgment under Rule 75.01, ⁹ since more than thirty (30) days had elapsed after the Motion to Set Aside Default Judgment was overruled."

The point is premised on the notion that once thirty days passed following entry of the August 2, 1994, order denying Motion I (the only motion in the trial court file that date), the trial court was powerless to enter the contrary order of January 11, 1995, vacating the June 27, 1994, judgment.

Had there been no irregularity in the August 2 order, Plaintiff's premise might be sound. However, as emphasized by Defendants, the August 2 order was entered at a...